GE Argues CAFC Patent Exceptionalism

Back in July, I predicted that competitor standing in PTAB appeals was a debate destined for cert petition. That petition was filed last Wednesday in Gen. Elec. Co. v. United Techs. Corp. (“GE”)

As a reminder, in GE the Federal Circuit held that for the competitor standing doctrine to apply in appeals from the PTAB, the government action must change the competitive landscape by, for example, creating new benefits to competitors (citing its earlier decision in AVX Corp. v. Presidio Components, Inc.).  The Court further explained that the government action with respect to a unique property right like a patent, militates in favor of a narrower application of the precedent. The holding in GE drew a concurrence from Judge Hughes (as bound by precedent), which explained his differing views on the Court’s competitor standing jurisprudence.

GE has pressed the views of Judge Hughes in its cert petition.

In its brief, (here) GE presents the issue as:

This Court and courts of appeals across the country have long held that government action that subjects parties to competitive harm, such as by increasing the burdens or costs of competition, satisfies Article III’s injury-in-fact requirement. In determining whether a petitioner in an inter partes review (IPR) proceeding has Article III standing to appeal a final written decision by the Patent and Trademark Office (PTO), however, the Federal Circuit has repeatedly held that such competitive harm does not constitute an injury-in-fact. Instead, the court has held that to establish standing, a petitioner who is not already the subject of a patent infringement claim concerning the challenged patent must show that it has “concrete plans for future activity that creates a substantial risk of future infringement.”  As Judge Hughes recognized in this case, the Federal Circuit has thus erected a “patent-specific approach to the doctrine of competitor standing that is out of step with Supreme Court precedent.”

The question presented is:

Whether competitive harm alone suffices to confer Article III standing to appeal an IPR determination, or whether an appellant must also show concrete plans for future activity that creates a substantial risk of a future patent infringement action.

The question of competitor standing is an important one as industries often-times utilize AIA trial proceedings to remove improvidently granted blocking patents for the purposes of opening up new markets for competition. Also, given the statutory right of appeal of the AIA statutes, Article III standing requirements have been relaxed by the courts in such scenarios.  With the intent of the AIA statutes to provide for more cost effective mechanisms for resolving patent disputes, this case seems ripe for SCOTUS review, and is likely to see significant amicus support from stakeholders across industries.